SCO and IBM Stipulate on Going Forward with Utah Litigation -- It's Game On ~ pj

Thursday, February 16 2012 @ 03:53 PM EST

SCO and IBM have reached a stipulation [PDF] on how to go forward on reactivating the Utah litigation, and SCO has filed it in Bankruptcy Court in Delaware. Assuming it's signed by the judge, the Hon. Kevin Gross, in time for the
April 23rd hearing now scheduled in Utah District Court in Salt Lake City before the Hon. Dee Benson on SCO's laughable
motion to let only *it* go ahead and IBM not, I'd say it's game on. They've agreed IBM can proceed with its defenses and counterclaims. It was IBM that suggested in its opposition to SCO's motion that the best way forward was to ask the Bankruptcy Court to lift the stay on *both* parties, which is what the stipulation agrees to.

Update: The judge in Bankruptcy Court in Delaware has already signed the order approving the stipulation.

Here's the meat of the stipulation about going forward in SCO v. IBM, emphasis added:

The automatic stay imposed under section 362 of the Bankruptcy Code is
modified to permit IBM (a) to defend the Utah Action and prosecute its
Counterclaims against SCO and (b) to offset any judgment against it
against any claim it may have against SCO; however, (i) the effect of
clause (b) of this paragraph is limited solely to relief from the
automatic stay; SCO shall preserve any and all defenses to setoff of any
such claims that it may have, and all of IBM’s claims to a right of
setoff shall be preserved, and (ii) IBM shall not seek to enforce
against SCO any judgment obtained in the Utah Action, except as provided
in this Stipulation....

IBM shall not oppose the reopening of the Utah Action. However, all of
IBM’s other objections to, and all of SCO’s arguments in support of, all
other relief sought in the Motion to Reopen the Case are preserved, and
nothing in this Stipulation shall be construed as supporting or waiving
any such other objection or argument.

SCO is waving the white flag on its crazy idea to let only SCO go forward. Judge Gross hasn't shown much interest in forcing SCO to pay anybody except its lawyers. But this has never, in my view, been about money for IBM. They want their good name unsullied by these people. And can you blame them?

Here's what else IBM suggested in its opposition to SCO's motion that didn't happen in the stipulation, so it's what will likely be raised in Utah next:

39. In summary, IBM supports the expeditious resolution of this case. But the best way to bring that about is not to proceed piecemeal as to three of SCO' s claims, especially where, as here, those claims are intimately related to IBM's counterclaims, which remain stayed due to SCO's bankruptcy filing, and are barred by the Novell Judgment. We respectfully submit that the most sensible way to proceed here is for the Court to enter an order (i) providing that this case shall be reopened within 5 days of the filing of a notice (by any party) that the stay of IBM's counterclaims has been lifted, which SCO should be able to accomplish expeditiously; (ii) stating that the claims that SCO concedes are foreclosed by the Novell Judgment will be dismissed when the case is reopened; (iii) directing that, within 45 days of the reopening of the case, any party may make a motion for summary judgment addressing the impact of the Novell Judgment on all remaining claims; and (iv) ordering the parties jointly to submit, within 10 days of the entry of an order of the Court determining the impact of the Novell Judgment, a proposed scheduling order to govern the balance of the case.

From SCO's point of view, it's all about Project Monterey. But IBM has a lot more it would like to talk about. Now it can. Well. On paper it's all about Project Monterey for SCO. But in reality, as far as I can tell, it's all about avoiding having to pay the piper for all the things SCO did.

Of course, the Bankruptcy Court keeps its thumb on the ultimate money, if the outcome is against SCO, but that's unavoidable in that Delaware is apparently going to let SCO stay in Chapter 11 bankruptcy protection as long as it takes to get the litigation resolved. Besides, SCO doesn't have any money. They tossed it all to the winds, and lawyers and other professionals got it. In their December monthly operating report, filed in bankruptcy court, they say TSG has almost no assets left and debts up over their head:

The MOR for TSG shows total assets as $0 (yes, that's "zero"), down from $1,326,293 on petition date, and total liabilities
of $1,119,238, up from $418,965 on petition date.
The MOR for TSG Operations shows total assets as $1,515,129, down from
$15,493,080 on petition date, and total liabilities of $9,739,295, up
from $4,311,640 on petition date. Go SCO! It was not bankrupt when it entered bankruptcy protection, but it surely is now.

I know some of you have wondered why SCO never entered Ch. 7. Maybe to keep Delaware control on the money outcome? You think?

A lot can happen between now and April 23rd, so if you were planning to attend, and I know some of you were, note that you need to check in with Groklaw and/or the court before you set out that day to make sure it's still on. There are still the issues IBM raised about further motion practice, so the hearing may still go forward on that and any other issues.

For those who can't even remember this motion, here's where you can go to refresh your memory:

If you read all three, you'll see the playbook of what each side hopes the litigation will be about and why each thinks it's right.

Another Caldera Press Releas from 1996

While we are waiting, I found another 1996 Caldera press release I wanted to add to our collection, mainly for historians, because Caldera made some acquisitions that year to help them meld UNIX and Linux together to make Caldera OpenLinux. And I have the press release where Caldera announced the first product.

One reason I wanted to stop doing Groklaw on a daily basis was so I could sort through all the materials I'd saved over the years, to make sure our record of this saga was as complete as I could make it. In the early days, I didn't know as much technically as I do now, and while I had saved a lot of things, I didn't necessarily know at the time what it meant, so I wanted to look through it all and see if I'd missed anything.

We had earlier noted a Caldera press release from May 23, 1996. And it's still online on alt.os.linux.caldera, thanks to Google, which has preserved the old archives. Thank you, Google. In that press release, Caldera was announcing that it was acquiring some technologies that it hoped to use to achieve X/Open Unix certification for the version of Linux it would be developing, called Caldera OpenLinux. Here's the paragraph that especially caught my eye at the time, emphasis added:

Caldera has also retained the UNIX systems and Linux
expertise of engineers from Linux Support Team (LST) of
Erlangen, Germany, who will spend the next few months
integrating technologies from Lasermoon, Caldera's existing
operating system, additional Single UNIX Specification APIs and
Internet technologies, and LST's Linux 2.2 operating system,
based on Linux 2.0 source code from the Internet. The resulting
version of the Linux OS will be called Caldera Open Linux. It
will be POSIX.1 (FIPS 151-2) certified, localized and fully
compatible with Caldera's existing products.

Now did you notice the Unix and Linux guys working together -- no Chinese wall -- to make it all work together, UNIX and Linux?

Oh, and remember SCO alleging that Linux was just a toy until IBM got involved? That's part of its allegations against IBM in its complaint. Read the press release for the truth. It says Linux was second to Sun in World Wide Web servers, with 9% of that market in *1995*, half a decade before SCO claims IBM got into the picture. Mr. Sparks:

Linux technologies developed by the Internet
community have secured market share and application
development that rivals the best of established computer industry
vendors.

They followed through and later that year, on October 9th, they
announced the availability of Caldera Open Linux, and I'll show you the full press release on that in a second, but look at this ironic bit:

Caldera, Inc. designs, develops and markets a line of full-featured,
economical system software for the Internet by the Internet, providing
stable, high-quality alternatives to NT, Sun Solaris, and SCO UNIX.

Ah, the sweet smell of truth. Alternatives. Caldera *wanted* people to switch from SCO UNIX to Linux, and it worked hard to make it happen. Now they want to sue IBM because it did happen. If you recall, SCO told the IBM judge back in 2007 the following:

19. Contrary to IBM assertions at paragraph 50 of the Motion, and elsewhere, SCO did not encourage its partners or its customers to use or support Linux instead of Unix. Rather, SCO consistently positioned Linux as a complementary solution to UNIX, and something that could be used in addition to (not in place of) UNIX.

That's SCO pretending it was Santa Cruz Operation, not Caldera, but that's just SCO's inner voices. The point is, IBM didn't interfere with SCO's UNIX business by encouraging Linux adoption. Caldera did that. So TSG should sue itself. And speaking of truth, note this paragraph:

Certification

Currently, Caldera is working with the Linux community in making COL
compliant and certified with industry standards like POSIX.1
(FIPS 151-2), Single UNIX Specification APIs and X-Open branding.
These additions will be in future releases of COL stratified products
when the enhancements have been integrated by key Linux developers.
All of the work for standards compliance will be freely contributed
back to the Linux community.

First they induce you. Then they sue you.

Not exactly. They got a new CEO in 2002 and a new business plan. Here's the full press release, for history:

New Technology and Stratified Products to Ship in 4th
Quarter 1996 and Throughout 1997

Provo, UT October 9, 1996 Caldera Inc. today announced the
development and implementation of Caldera OpenLinux (COL),
a new 32-bit, Linux 2.x-based platform for extending local
area networks (LANs) to the home, branch office, remote user,
Inter/intranet and embedded systems. To extend the LANs in an
economical and easily managed way, COL technology will be offered
in three product stratifications; base, workstation and server.
Caldera the leader in commercial Linux-based system software
debuted COL this week at UNIX Expo in New York.

"Caldera first met customer demand for commercial Linux solutions
by combining Linux technologies with enterprise standards like NetWare
and Netscape Navigator ," said Ransom Love, vice president of
marketing and sales for Caldera. "From the best of these and other
technologies have evolved the Caldera OpenLinux platform and stratified
products. Caldera product offerings will now be based on the COL
platform with complete stratified solutions for workgroup and
network/server environments."

The secure, peer-to-peer COL platform first evolved from the
synthesis of Caldera's existing Linux-based technologies and
those acquired from Lasermoon of Wickham, England, pioneers of
the Linux migration towards X/Open standards and other certifications.

The efforts of the Linux System Technologies (LST) of Erlangen,
Germany, completed the evolution of COL by integrating the Caldera
and Lasermoon technologies with additional Internet technologies
and LST's Linux 2.x-based products. COL is the official upgrade
path for Lasermoon customers.

Certification

Currently, Caldera is working with the Linux community in making COL
compliant and certified with industry standards like POSIX.1
(FIPS 151-2), Single UNIX Specification APIs and X-Open branding.
These additions will be in future releases of COL stratified products
when the enhancements have been integrated by key Linux developers.
All of the work for standards compliance will be freely contributed
back to the Linux community.

Languages

Caldera is committed to providing products for the global Linux
market. COL stratified products will ship with an installation
localized into English and German. Additional components of the
product will be localized into English, French, German and Spanish.
Caldera also plans product localization for the Japanese and
Chinese markets.

COL base

The COL base product includes the following:

- Linux 2.x (multi-tasking, multi-user, 32-bit kernel with firewall
facilities and comprehensive system utilities open source
code included on CD-ROM)

The COL base product provides Linux users and first time UNIX buyers
with a comprehensive UNIX system that can run on Intel-based PCs
including laptops with 16 MB of RAM. COL will be made available to
hardware and software OEMs, Channel Partners and be the industry-
standard platform for ISVs porting applications to Linux.

The Caldera Solutions CD allows resellers and Linux users to purchase
and install from the CD-ROM Linux-based software applications to
facilitate the creation of customized solutions.

COL workstation is the Inter/intranet workstation solution providing
client and server capabilities for NetWare, UNIX and Windows NT
in conjunction with full Inter/intranet, authoring, publishing and
browsing capabilities. All services on the local network may be
extended down-the-hall, to-the-home or around the world across a
high-speed connection by simply adding a frame relay or ISDN commodity
card to Intel-based PCs. COL workstation is the second-generation
solution for Caldera Network Desktop (CND) customers and replaces CND.

- Novell GroupWise (Caldera has contracted to include a five-user license)

...and other technologies

The COL server is designed for the workgroup and small office environments
that need to fully utilize all systems. The COL server combines a
complete applications server with all necessary Inter/intranet
technologies enabling an organization to publish and interoperate with
the Internet in a secure fashion. The COL server complements all
NetWare, UNIX and Windows NT environments.

Future Development and Internet/Linux Community Funding

Caldera will continue to collaborate with developers in the Internet
and Linux communities to develop and refine technologies that add the
specific functionality requested by Caldera's customers. In addition,
Caldera will provide a percentage of net revenues from COL-based
products back to the Internet and Linux communities through funding
for future technology development.

Customer Support

Support for the COL base product will be Internet-based, using
the WWW and FTP. In addition to the Internet-based support, support
for the workstation and server products will include free thirty-day
installation support as well as fee-based, per incident support calls.

Pricing

The COL base product is scheduled to ship in November, 1996 for a
suggested retail price of $59 US. The COL workstation product will
ship for a suggested retail price of less than $300 US. The COL
server product will ship for a suggested retail price of less than $1500 US.

Promotions and Upgrades

Until December 31, 1996, current registered CND users and those who
purchase and register CND between now and December 31, or while
supplies last, may purchase COL workstation for $59 US.

The COL base product is not an upgrade to CND. Users of the COL
base product will be provided an upgrade to both COL workstation and
COL server when these products ship.

Until December 31, 1996, current users of any Linux operating system
(WGS LinuxPro, Red Hat, Slackware, Yggdrasil Plug and Play Linux,
etc.) may upgrade to the COL base product for $45 US. Proof of usage
may be presented to any Caldera Channel Partner or Caldera, Inc.

Caldera, Inc. designs, develops and markets a line of full-featured,
economical system software for the Internet by the Internet, providing
stable, high-quality alternatives to NT, Sun Solaris, and SCO UNIX.
Caldera uses it own technological and marketing resources to leverage
technologies including the Linux operating system created by
independent developers worldwide. Visit the Caldera web site
at http://www.caldera.com/.

###
Caldera is a registered trademark; and Caldera OpenLinux, Caldera
Network Desktop, Caldera Solutions CD and Caldera OpenDOS are
trademarks of Caldera, Inc. UNIX is a registered trademark, in
the United States and other countries, licensed exclusively through
X/OPEN Company Limited. Netscape Communications, the Netscape
Communications logo, Netscape and Netscape Navigator are trademarks
of Netscape Communications Corporation. All other products, services,
companies and publications are trademarks or registered trademarks
of their respective owners.

Caldera Press Contacts:

Lyle Ball
lyle.b...@caldera.com
Tel: [redacted]

Nancy Pomeroy
na...@caldera.com
Tel: [redacted]

Here's the entire press release, the one dated May 23, 1996 and published on alt.os.linux.caldera on May 26, 1996, posted by Rick Lindsay, that I want to include in our records, just in case. It's been eye-opening to see how much of the SCO saga is no longer where it was on the Internet, and how much has simply disappeared. That's why we do Groklaw:

FOR IMMEDIATE RELEASE
May 23, 1996

CALDERA OPEN LINUX PRODUCT TO OBTAIN
POSIX AND FIPS CERTIFICATIONS, AND THE
X/OPEN BRAND FOR UNIX 95 AND XPG4 BASE 95

LINUX KONGRESS, BERLIN, Germany May 23,
1996 - Caldera, Inc. today announced that it has acquired
additional key Linux technologies and engineers, enabling the
company to achieve the X/Open brand for UNIX 95 and other
certifications for its next version of the Linux operating system,
Caldera Open Linux, upon which Caldera will base its product
line beginning this Fall. Caldera believes the X/Open brand and
other certifications are the next steps forward in providing the
corporate and government markets with proven Linux
technologies and products, which have gained substantial market
share among the Internet and development communities during the
past several years. Caldera also today announced plans to add
LDAP technologies to Caldera's product line.

"By developing and publishing source code over the
Internet, Caldera and the Linux community are changing the way
that an X/Open branded UNIX 95 operating system is developed
and distributed," said Bryan Sparks, President and CEO of
Caldera, Inc. "Linux technologies developed by the Internet
community have secured market share and application
development that rivals the best of established computer industry
vendors. Caldera development and infrastructure efforts will now
take Linux technologies and products into companies,
governments and other organizations that demand that software
undergo rigid standards testing and certifications."

Caldera has acquired additional Linux technologies from
Lasermoon of Wickham, England. Lasermoon pioneered Linux's
migration towards X/Open standards and other certifications, and
held the necessary test suites and membership in The Open
Group, the leading consortium for the advancement of open
systems. Ian Nandhra, one of Lasermoon's co-founders, is now
Caldera's Director of Product Certification.

Caldera has also retained the UNIX systems and Linux
expertise of engineers from Linux Support Team (LST) of
Erlangen, Germany, who will spend the next few months
integrating technologies from Lasermoon, Caldera's existing
operating system, additional Single UNIX Specification APIs and
Internet technologies, and LST's Linux 2.2 operating system,
based on Linux 2.0 source code from the Internet. The resulting
version of the Linux OS will be called Caldera Open Linux. It
will be POSIX.1 (FIPS 151-2) certified, localized and fully
compatible with Caldera's existing products.

Caldera Open Linux, scheduled for release in Q3 1996,
will be published freely with full source code via the Internet to
individuals and organizations seeking stable, UNIX systems
solutions. Caldera plans to achieve: POSIX.1 (FIPS 151-2) in
Q3 1996; XPG4 Base 95 (POSIX.2, FIPS 186) by Q4 1996; and
X/Open brand for UNIX 95 based on the Single UNIX
Specification (formerly known as SPEC 1170) during 1997.

"The Open Group is very pleased that Caldera has chosen
to obtain the X/Open brand for UNIX 95 for its version of the
Linux operating system," said Graham Bird, Director of Branding
for the Open Group.
"Once Caldera Open Linux achieves the X/Open brand, it will be
qualified to bid business in the open systems market the value of
which exceeds $16 billion in procurement of X/Open branded
products alone."

Ransom Love, Vice President of Marketing and Sales for
Caldera, added,"Our customers are pleased with the capabilities of
Caldera's first product, the Caldera Network Desktop, and are now
asking us to provide the X/Open brand, localization, and
additional technologies. Caldera Open Linux will provide this
additional functionality and certification capabilities that no
existing Linux OS version can provide."

Caldera made this announcement from Linux Kongress in
Berlin, Germany, where the core of Linux developers and vendors
worldwide meet each year to discuss accomplishments and future
plans for Linux technologies. At Linux Kongress, Caldera planned
to meet with key Linux developers and vendors to discuss how
Caldera can best meet the needs of the Internet community, Linux
developers and enthusiasts, and the commercial computer industry
market all of which are seeking to lower computing costs while
increasing the functionality and availability of customizable
software systems.

Caldera will collaborate with developers in the Internet
and Linux communities to develop and refine technologies that
add specific functionality that Caldera's customers are requesting.
In addition to publishing the source code for Caldera Open Linux,
Caldera will provide a significant percentage of net revenues from
the product back to the Internet and Linux communities through
funding for future technology development.

Caldera is also collaborating with mainstream industry
software vendors (ISVs) who are porting their products to
Caldera's platform. Caldera and its partners are delivering
products that provide Internet and UNIX systems capabilities at
commodity pricing.

LDAP

Caldera also today announced plans to release Lightweight
Directory Access Protocol (LDAP) services and incorporate
LDAP into Caldera's product line this Fall. LDAP creates a
standard way for Internet clients, Web servers and applications to
access directory listings of thousands of Internet users.

"Caldera supports LDAP as a proposed open standard for
directory services on the Internet," said Sparks. "LDAP will
enable Caldera's customers to access online directory services via
the TCP/IP network protocol."

Caldera Europe

Currently, Caldera's European business is handled by
LunetIX based in Berlin, Germany. This Fall, Caldera will create
Caldera Europe, comprised of employees from both LunetIX and
LST. European customers and resellers seeking additional
information about Caldera should contact LunetIX in Berlin at
telephone number +49-30-623-5787 or contact Caldera's Provo,
Utah-based headquarters.

The Caldera Linux Operating System

Caldera's mission includes creating the products, alliances,
VAR channel, ISV channel, technical support programs and
corporate accountability necessary for an emerging technology to
obtain widespread implementation in the business environment.
Using Linux technologies, Caldera has a solid start. Mirai, a
Chicago-based consulting company, polled Webmasters worldwide
in 1995 and found that nine percent of World Wide Web servers
were running on the Linux operating system
(http://www.mirai.com/survey). This places Linux second only to
Sun technologies as a UNIX systems Web server platform.

Caldera has created a solid foundation on which third
party developers can successfully design, develop, distribute or
employ services that meet the needs of the expanding market with
low product costs for consumers.
Caldera, Inc., a privately held company established in
1994, empowers the Internet community, developers, OEMs,
channel partners, ISVs, industry partners, consultants and end-
users to collaborate, innovate, build and deliver meaningful
computing alternatives based on Linux to the business community.
Caldera is at http://www.caldera.com/ or (801) 229-1675. For
orders and information call (800) 850-7779 in the United States or
(801) 269-7012 Internationally.

###

Caldera is a registered trademark; and Network Desktop, Caldera Internet
Office Suite, Caldera Solutions CD, and Caldera Open Linux are
trademarks of Caldera, Inc. UNIX is a registered trademark, in the
United States and other countries, licensed exclusively through X/Open
Company Limited. X/Open is a registered trademark of X/Open
Company Limited.